Obtaining a New Water Right Permit

December 08, 2017
By
Gregory Klipp, Attorney at Law

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OBTAINING A
NEW RIGHT TO APPROPRIATE STATE SURFACE WATER

New Water Right Permits

A person or entity desiring to appropriate surface water (i.e., state water)
or to begin construction of any project designed for the storage, taking,
or diversion of state water must first obtain a water right permit before
doing so. Permit applications for permanent and temporary water right
appropriations are available to potential applicants through the Texas
Commission on Environmental Quality (TCEQ). Under the TCEQ’s permitting
process, the TCEQ may grant a precisely defined surface water right to
appropriators of state water consisting of a right to use a specific amount
of water from a specific body of water by a diversion identified by a
specific location for a specific use at that location. Once a surface
water right has been put to its specified beneficial use in conformance
with state law, the right is considered “perfected” and becomes
a vested property interest passing with conveyance of title to the land
unless the right has been expressly reserved by the Grantor or granted
for the irrigation of land not owned by the applicant.

If applying for a new or temporary right to appropriate state water, potential
applicants must complete and submit one of the following permit applications
to the TCEQ (note: FORM NUMBERS MAY CHANGE):

i. Permanent Water Appropriation Permit; TCEQ Form 10214.

ii. Temporary Appropriation Permit (10 acre feet or less for one calendar
year or less); TCEQ Form 20425.

iii. Temporary Appropriation Permit (more than 10 acre feet of water per
year, or diversions lasting more than one calendar year); TCEQ Form 10202.

Although the above forms are the most commonly used for new permanent or
temporary appropriations, other appropriations are also permitted by the
TCEQ; those additional permits include:

a. Seasonal Permits, typically for irrigation only to fill an off-channel
reservoir during the wet season.

b. Contractual Permits, amendments to an existing water right permit authorizing
a use by a third party.

c. Permits authorizing the conversion of an exempt domestic and livestock
reservoir to other beneficial uses.

d. Permits for storage, not necessarily for a beneficial use.

e. Term Permits, issued by the TCEQ for a term of years, and often provides
that the permit is renewable at the expiration of that term with the retention
of the original priority date.

f. Emergency Authorizations to appropriate state water if emergency conditions
present an imminent threat to public health and safety and there are no
feasible, practicable alternatives.

The TCEQ will only grant an appropriation permit (new permit or amended
permit) if, after filing the proper application, paying the required fees,
and notice and hearing, the applicant can show that: (1) unappropriated
water is available in the source of supply; (2) the appropriation is intended
for a beneficial use; and (3) reasonable diligence will be used to avoid
waste and to achieve water conservation.

1. Is Unappropriated Water Available?

The availability of unappropriated surface water is a frequent source of
controversy in contested permit applications. As one would guess, the
majority of state water in Texas has already been appropriated, and it
is often times difficult for an individual to demonstrate that water is
available for appropriation on water courses where water has already been
appropriated by other users.

According to the Texas Supreme Court, “unappropriated water”
means the amount of water remaining after taking into account the complete
satisfaction of all existing un-canceled water right permits and filings
for the water course valued at their recorded levels. In order to determine
whether or not water is available for appropriation, the TCEQ uses its
water availability models, sometimes referred to as “WAMs,”
to simulate water usage for each river basin in the state by relying on
a simulated historic period, for a specific location, under specified
diversion or storage requirements, after allowing water for the satisfaction
of existing water right holders. For approval of an application for direct
appropriation from a water body, approximately 75% of the water requested
must be available approximately 75% of the time when distributed on a
monthly basis and based upon the available historic streamflow record.

2. Is the Appropriation Intended for a Beneficial Use?

In order for the TCEQ to issue a water right permit, the applicant must
demonstrate that the proposed appropriation is intended for a beneficial
use, does not impair existing water rights or vested riparian rights,
is not detrimental to the public welfare, considers various environmental
and water quality assessments required by statute, and addresses a water
supply need in a manner consistent with the state water plan and relevant
approved regional plans.

a. Beneficial Uses:

According to Texas Water Code, §11.023, state water may be appropriated,
stored, or diverted for the following beneficial uses: (1) domestic and
municipal, (2) agriculture and industrial, (3) mining, (4) hydroelectric
power, (5) navigation, (6) recreation, (7) public parks, (8) game preserves
and wildlife management, and (9) “any other beneficial use;”
the former uses taking precedent over latter beneficial uses. The term
“beneficial use” is very broad and can include any number
of uses so long as the water requested is not excessive in light of the
use intended. Often times, water right applicants will list more than
one intended use for the water in order to allow for future changes in
activities without having to continually submit to the TCEQ water right
permit amendment applications. For example the TCEQ may grant a multiuse
permit for an appropriator that wants to make water available for irrigation,
mining, oil and gas recovery, public parks, game preservers, water quality
and aquatic and wildlife habitat.

b. Non-Impairment of Existing Water Rights:

The TCEQ may grant a water right permit (or amendment) only after it has
determined that the proposed appropriation will not impair existing water
rights or vested riparian rights located downstream of the proposed diversion
point. As part of its hydrologic analysis, the TCEQ will examine the impact
of the proposed appropriation and whether or not the proposed appropriation
will impair water availability for existing permit holders on the same
water course. If the TCEQ finds that the appropriation will impair the
rights of senior downstream users, the TCEQ may include restrictions on
the diversion and use of water in the water right permit issued to the
new appropriator.

c. Public Welfare:

The TCEQ may grant a water right permit only after it finds the appropriation
will not be detrimental to the public welfare. “Public welfare”
being the impact of the appropriation, taking into account the environmental,
social, and economic consequences on other users of that water, including
the public.

d. Conservation and Drought Contingency Requirements:

As part of its review of a water right permit application, the TCEQ will
request that an applicant provide evidence demonstrating the applicant
will use reasonable diligence to avoid wasting the appropriated water
and to achieve “water conservation” over the life of the permit.
Water “conservation” being the development of water resources
and those practices, techniques, and technologies that reduce consumption,
reduce loss or waste, improve efficiency in use, increase recycling and
reuse, or prevent pollution of water so that supplies are available for
future or alternative uses. In order to meet the conservation requirement,
all applicants for new or amended water right permits must develop and
submit with their application a water conservation plan and adopt reasonable
conservation measures with varying criteria depending on the water use.
In addition to developing water conservation plans, wholesale and retail
public water suppliers and irrigation districts must also develop drought
contingency plans for implementation during periods of water shortages
and drought.

e. Other Requirements:

In addition to the above referenced requirements, the TCEQ will only grant
an application for a water right permit or amendment if the proposed appropriation
addresses a water supply need in a manner consistent with the state water
plan and any relevant approved regional water plan, unless otherwise waived
by the TCEQ. Furthermore, the TCEQ will also take into consideration various
other statutes concerning the environmental and conservation impact of
the water right permit, including: (1) the impact on groundwater or groundwater
recharge; (2) the impact on Texas bays and estuaries; (3) the impact on
current instream uses; and (4) the impact of fish and wildlife habitat.

Gregory Klipp, Attorney at Law

December 2017

DISCLAIMER: The foregoing information is not legal advice and is general in nature
and not applicable to all situations. The reader should not rely on these
general statements and should consult with knowledgeable persons before
taking any actions.

The information on this website is for general information purposes only.
Nothing on this site should be taken as legal advice for any individual
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